2. Applicant
has preferred this revision for getting him discharge from the
Sessions Case No. 38 of 2009. For the purpose, petitioner has
challenged the order dated 23rd January, 2013 passed below Exh. 678,
679 and 680 by the Designated Judge of serial bomb blast of SIT,
Ahmedabad.

3. Recalling
of factual details may lead to further arguments and allegation that
considering the nature of crime the legal proceeding does not lead
to the judicial decision. There is no substance in such allegation
since every matter has to be decided in accordance with law and
available evidence. Considering the fact that otherwise also while
deciding such application regarding discharge of an accused, Court
shall not churn the entire prima facie evidence, as if it has to
decide the entire trial at such preliminary stage and fact that the
discussion of such factual details may prejudice either side during
the trial, the nature of crime and history of incident is avoided to
be reproduced here. However, it cannot be ignored and it is necessary
to disclose in any such judicial orders that the trial of Sessions
case No. 38 of 2009 against several accused is because of some
terrorist activities in the City of Ahmedabad on 26th
July, 2008, when several bomb blast were created between the short
span of 6.50 p.m. to 7.45 p.m. in crowded places viz. Civil and
L.G.Hospital where victims from general public would not be able to
move fast, so that there must be maximum casualty. Thereby in
couple of minutes there were 54 death of human beings and 240
persons were injured in the serial bomb blast created, arranged and
managed or supported by the accused.

4. It
is not disputed that present applicant was not arrested or caught red
handed from the site of incident arraigned with any specific
material. However, he has been arrested and arried as an accused
with other accused, who were found with some cogent evidence against
them. Because, it has been revealed during investigation that there
was a big conspiracy amongst several terrorist group within the
country and present petitioner is member of such terrorist group and
he has involved himself in the larger conspiracy of creating havoc by
planting serial bomb in crowdy area of big cities of nation. The
arrest of petitioner and inclusion as an accused in the given case
is because of specific information revealed during the investigation
that petitioner has involved himself in crime by supporting the
actual offenders who had physically planted the bomb at given place.
It goes without saying that such cases of serial bomb blast cannot be
committed or performed by one or two persons without help of larger
conspiracy and support of other persons, at least for bringing the
explosive material, manufacturing bomb, transporting it from one
place to another place, planting it and getting it blasted and
thereafter to hide from the place of incident and then to run away at
safe place, so as to continue similar not only illegal, but anti
national and unhuminitory activities.

5. Learned
advocate Mr.S.M.Vatsa appearing for the applicant has argued at
length. The sum and substance of his arguments is to the effect
that there is mis-identity issue inasmuch as present applicant is
no where involved in any such crime, but he is being arrested and
sent to custody only because of his name, which is similar to the
name of one of the member of some terrorist group and that
practically he was not involved in the commission of crime.

6. To
substantiate his submission, applicant has relied upon the
statement of co-accused Imran Ibrahim Shaikh recorded by Naroda
Police Station in First FIR No. 400/08. It is submitted that in
such statement reference of co-accused are there, but so far as the
present applicant is concerned, accused-Imran Ibrahim has never
disclosed his name as conspirator and co-accused and what is stated
by such Ibrahim was only to the effect that there was reference of
Jahir, Tokir and Falahi of U.P. It is submitted that however, there
are several Falahi in area. To substantiate such arguments, ld.
advocate Mr.Vatsa is relying upon the list of members of
organization mainly Students Islamic Movement of India [for short
SIMI] . Applicant has produced photocopy of list of members of
such organization [Pg.155 to 167 at Annexure E]. Though, applicant
has termed such list of photocopy of such relevant investigation
papers in relation to SIMI, when applicant relying upon such list
to show that his name is not there in such list. It becomes clear
that such organization and its members are in existence inasmuch as
what is submitted by the applicant is to the effect that there are
several persons with the names or surnames Falahi . It is
further submitted by the applicant that as he belongs to Uttar
Pradesh and in the given list of SIMI, there is special list of Uttar
Pradesh Zone wherein also there are at least two persons namely
Falahi and that his name is not there in such list. In addition
to such arguments, it is submitted that since there is no
confirmation about the involvement of the applicant in the crime and
when his name was not there in the list of members of organization
namely SIMI, more, particularly when his name was not clearly
disclosed by the co-accused in his statement under Section 164 before
the Investigating Officer, which is produced on record at Exh. D ,
he cannot be considered as an accused . It is submitted that this is
a clear cut case of not only investigation but history also by the
trial Court in not considering such fact that practically petitioner
is no where involved in such activities.

7. Thereby
sum and substance of the arguments is limited to the extent that
according to applicant, he has been arrested and connected with
crime only because of his name Falahi . Though, there is no
cogent evidence regarding his involvement either in the crime or
conspiracy of the crime.

8. As
against that ld. Special Public Prosecutor Mr.J.M.Panchal has
described the nature of incident confirming that accused are
charge-sheeted under Unlawful Activity Prevention Act, 1967, since
the activities are not only harsh and cruel, but it is anti
national and terrorist activities and hence, it is submitted that in
such cases when there is evidence regarding larger conspiracy, it
cannot be said that at such stage there is no evidence against the
applicant . It is further submitted that presence of applicant in
training camp at Wagmor, Kerala is confirmed during investigation and
applicant being member of SIMI which is banned since September,
2001, has acted with members of All Indian Mujahideen Terrorist
Group for blasting bombs in crowdy area of the city wherein 54
persons had died. It is further submitted that practically charges
are framed against the accused in March, 2013 and till date 217
witnesses have already examined and since trial is ongoing on
day-to-day basis on priority in Jail premise as per direction of
the Hon ble Apex Court and when charge-sheet is filed long back
in the year 2008 showing present applicant as an accused No. 48 and
when he was absconded at the material time and when found thereafter
and when his application for discharge has been dismissed long back
i.e. 23rd January, 2013, now, there is no reason to roll
back the situation and trial by allowing discharge application
without offering reasonable opportunities to the prosecution to
prove its case.

9. As
against that learned advocate for the applicant has tried to explain
that how the applicant has been identified as such by relevant
panchnama and how, he has been involved in such case. However,
discussion on such prima facie evidence at this stage, would result
into opinion in some form on either side, whereas law specifically
prevents the Court to churn such evidence and arrive at any specific
conclusion at such stage except from scrutinizing that whether there
is prima facie evidence against applicant/accused or not ? Therefore,
discussion on police paper of charge-sheet and other evidence has
been avoided

10. Whereas
ld. Special Public Prosecutor has reconfirmed that practically the
name of present applicant as disclosed in the charge-sheet and as
disclosed by the applicant himself in cause title of the present
Revision Application makes it clear and confirmed that he is same
person and with same name is crop up during the investigation, there
is no question of mis-identity by the Investigating Agency for which
applicant can be discharged, as prayed for, by the applicant .
There is substance in such arguments, though applicant has tried to
show some documents like membership list of SIMI, Electoral roll,
photo copy of passport, photocopy of mark-sheet, election card,
identity card etc. However, all such documents confirmed that
applicant is Mohd. Habib s/o . Abdul Jais Shaikh and if such name is
disclosed to the Investigating Agency during investigation with same
address as that of present applicant, prima facie, it is to be
believed that he is the applicant only who is required to be tried
for the offence.

11. So
far as the evidence regarding conspiracy is concerned, it is clear
that there may be less possibility of direct documentary or physical
evidence to prove conspiracy which can be proved by only
circumstantial evidence by proof of complete chain of events and
conspiracy, which can be proved only after the complete evidence is
allowed to be adduced and recorded by the trial Court.

12. Ld.

Special Public Prosecutor also relied upon the warrant of arrest
issued by the Metropolitan Court on 14th November, 2008,
wherein also the correct name and address of the applicant has been
disclosed and pursuant to such arrest warrant, if concerned police
station of Uttar Pradesh has arrested present applicant as such,
then there is no reason for investigating agency to disbelieve or to
reconfirm the identity of the applicant as such.

13. Ld.

advocate for the petitioner has relied upon as many as 10 judgements
of the Apex Court on different grounds which are listed as under :-

14. So
far as Sr.No. 1, 2 and 4 & 6 are concerned, they are with
reference to Sections 227 and 228 of Cr.P.C for which detailed
discussion has recorded herein and the same are not dealt with
separately.

15. In
so far as the case of Navjot Sandhu (Supra) is concerned,
petitioner has submitted that for connecting person as an accused
under Section 120B of IPC, what is required is clear chain of
circumstances to confirm the involvement of any person and in absence
of specific evidence against particular person, he cannot be
convicted only under Section 120B of IPC and thereby one accused has
been acquitted by the Apex Court in the case of Parliament attack,
wherein also the allegation are under Prevention of Terrorist Act and
it was considered as terrorist activities. However, only because
Supreme Court has acquitted one accused in such case, it cannot be
taken as a rule or law to discharge all accused, it cannot be
ignored that acquittal in reported case was after full-fledged trial
and there were no order to discharge him.

16. So
far as the case of Sanjay Sigh (Supra) is concerned,
practically, there was no evidence against Sanjay Singh except the
fact that he was known to the accused person. Apex Court considered
that only association of a criminal person is not adequate to prove
conspiracy by such person in absence of any evidence. Since, Apex
Court was convinced from the available record that Sanjay Singh was
not involved in conspiracy, in absence of material on record to
indicate tacit understanding amongst the accused. The discharge was
confirmed. However, only because in a given case, discharge was
confirmed, it cannot be said that in all the cases, all the
accused are entitled to be discharge on parity. It is settled legal
position that all the previous decisions are to be considered not
only in accordance with law but also in reference to the facts and
material on such case.

17. In
Haricharan Kurmi s case
(Supra)
the issue
before the Apex Court was
regarding statement of the co-accused which simply confirmed that
the confession of co-accused person cannot be treated as
substantive evidence in criminal trial . There is no scope of
applying principle of moral conviction on grave suspicion. However,
it is the case after full-fledged trial and acquittal after trial
would not held that the petitioner is entitled to get the discharge
at this stage.

18. In
Salim Akhtar s case (Supra),
the Hon ble Apex Court has considered the effect of Section 27 of
the Evidence Act . However, though it is pertaining to photograph,
practically, it was for the confirmation of recovery of pistol and
therefore, Apex Court has held that considering the facts and
circumstances of the case disclosure statement of recovery of
articles is not admissible in evidence. However, this is also final
judgement after full-fledged trial. It simply confirms the
certain position, considering the facts and circumstances of the case
and, therefore, it cannot be treated as rule of thumb for each case
irrespective of other evidence.

19. Whereas
in the case of Kartar Singh (Supra), the
issue was regarding identification through photographs . However, if
we perused the judgement, it becomes clear that identification
of a person on the basis of photograph was deal with in such reported
case with reference to Terrorist and Disruptive Activities
(Prevention) Act (for short TADA )
that was to with reference to constitutionality of such provision .
But it nowhere confirms that irrespective of any cogent evidence,
identification of photograph cannot be confirmed. Ultimate decision
with reference to photograph in such reported case, wherein judgement
also only after full-fledged judgement and with constitutionality of
Section 20(7 )of TADA Act. However, even by such disclosure, it
cannot be said that photograph cannot be treated as evidence in any
manner. Thereby there is sufficient evidence to prove certain things
through photograph and if photograph is proved on record, it cannot
be ignored.

20. So
far as the case of Salim Akhtar (Supra)
is concerned, it is pertaining to recovery of material and confirms
how to deal with such recovered material wherein, it is held that
his pistole is not sealed on the spot neither its number was
disclosed in the recovery memo which certainly raised doubt
regarding factum of recovery. Therefore in the present case, when
there is no question of recovery of any material from the present
applicant, only because in given case benefit was extended to the
terrorist in absence of proper
evidence regarding recovery, it cannot be said that in all such
cases, accused shall be discharged. It is also evident that
this all reported cases are after full-fledged trial and not at
such stage of discharge before trial when an opportunity to the
prosecution to prove their case was yet to be provided.

21. Whereas
in the case of Kehar Singh (Supra) the
issue was regarding abscondment, wherein absence of panch witnesses
regarding abscondment of a person allegations of absconding was
not believed as trustworthy . In the present case charges against
the present applicant are not for his abscondment at the time of
filing of charge-sheet . It is mainly for the conspiracy in
commission of main offence of serial bomb blast in the city area and
to that extent since these cited cases is also after full-fledged
trial, it does not help the applicant to get discharge from the
case.

22. No
other submissions were advanced before me by the petitioner.

23. As
against that ld. Special Public Prosecutor has relied upon the
following cases:-

24. In
the case of Devender Pal Singh (Supra) Bench of three
judges of Apex Court has considered the conspiracy in terrorist
activities and confirmed the sentence, even in absence of direct
evidence against the accused. The only issue was with reference to
the corroboration of evidence, when conviction is based solely on
confessional statement of co-accused. It was held that confessional
statement of the accused was relied upon for the purpose of
conviction and no further corroboration is necessary, if it relates
to the accused himself. As a matter of prudence, same corroboration
is necessary, if confession is to be used against the co-accused.
Therefore, unless there is full-fledged trial, it cannot be confirmed
at such preliminary stage that there is no evidence in corroboration
of the confessional statement of co-accused, so as to discharge the
petitioner .

25. In
the case of Rukmini Narvekar (Supra) it was held that there
is no scope for the accused to produce any evidence in support of
submission made on his behalf at the stage of framing of charges.
Only such material as indicated under Section 227 of Cr.P.C can be
taken into consideration by the Magistrate at such stage. Such
principle is well settled since long and it is well explained in the
case of Debendra Nath Padhi [2005(1) SCC 568] which is by the
larger Bench [three Judges] and therefore, ld. Sp.Public Prosecutor
has submitted that documentary evidence relied upon by the applicant
as filed with revision memo, which are discussed hereinabove, cannot
be taken into consideration at this stage.

26. In
the case of Chitresh Kumr Chopra (Supra), Apex
Court has considered the instigation as abatement and it was held
that at the stage of framing of charges, Court is required to
evaluate material and documents on record only to find out the facts
emerging therefrom which can be taken at their face value so as to
disclose existence of all ingredients constituting the alleged
offence or not. For this limited purpose, the Court may sift the
evidence but the available material has to be considered only with a
view to find out if there is ground for presuming that accused has
committed an offence or not, but not for the purpose of arrived at
definite conclusion. It is made clear that on the basis of material
on record, if the Court can
come to the conclusion that commission of offence is probable
conclusion, he case of framing
of charges exist.

27. In
the case of P.Vijayan (Supra)
while dealing with the Section 227 of Cr.P.C with regard to discharge
of accused the Apex Court has held that trial Court is empowered to
discharge the accused and trial Judge has not to see whether the
trial will end in conviction or acquittal. It is further stated that
Judge has to exercise his judicial mind to the facts of the case in
order to determine that whether a case for trial has been made out by
the prosecution or not. In assessing this fact, it is not necessary
for the Court to enter into the pros and cons of the matter or enter
into weighing and balancing of evidence and probabilities which is
the function of the Court, only after the trial starts. This is well
settled legal proposition on the subject and hence, this Court has
avoided to churn the entire evidence so as to give any decisive
conclusion regarding manner of involvement in commission of offence
by any particular accused in any specific manner.

28. In
the case of K Narayan Rao (Supra) Apex
Court has considered the criminal conspiracy and held that if there
is link or evidence to connect any person with the other conspirators
for causing loss to others, undoubtedly, the prosecuting authorities
are entitled to proceed under criminal
prosecution .

29. Following
decisions of the Apex Court also needs to be considered for
determination, decision and conclusion on the issue on hand.

of each case are not separately discussed, but gist of all such
cases are to the effect that the law on the subject
is now well-settle that while considering the discharge application,
the Court is required to evaluate the material and documents on
record for limited purpose i.e. to find out that whether facts
emerged from such material even if taken on their face value, is
enough in disclosing the existence of all the ingredients to
constitute the alleged offences. The Court may, for this limited
purpose, sift the evidence as it cannot be expected at such initial
stage to accept entire prosecution story as gospel truth even if it
is opposed to commonsense or the broad probabilities of the case.
Therefore, at the stage of framing of the charge, the Court has to
consider the material with a view to find out if there is ground for
presuming that the accused has committed the offence or that there is
no sufficient ground for proceeding against him and not for the
purpose of arriving at the conclusion that it is not likely to lead
to a conviction. The question whether there was mens
rea
and knowledge or negligence is not an abstract question of law but is
a matter of evidence and cannot be considered at this stage. However
I have gone through the record of the case and I am of the opinion
that there is sufficient evidence on record to prove the case of the
prosecution, where as explanation
by the accused is not trust worthy, since not supported by the
evidence less prima facie proof.

31. It
is certain that there must be a very strong suspicion to form a
presumptive opinion regarding the existence of factual ingredients
constituting the offence alleged and thereby prima-facie sufficient
ground to sustain the charge, for framing the charges so as to start
the trial against the accused persons. It is also well settled that
while framing the charge or while considering the request for
discharge, inquiry must necessarily be limited to decide if the facts
emerged from such material constitute the offence for which the
accused could be charged. At such stage, the Court may peruse the
record for that limited purpose, but it is not required to marshal
the evidence with a view to decide the reliability thereof. Thereby
the Court has to consider the material at such stage only with a view
to find out if there is a ground for presuming that accused has
committed an offence or that there is no ground to prosecute him.
Thereby, the Court has to sift the evidence, as it cannot be expected
even at initial stage to accept all the prosecution story as gospel
truth and even if it is opposed to common sense or the broad
probabilities of the case, the Court has to consider the material
with a view to find out that whether there is any ground to presume
that the accused has committed the offence or that there is no ground
for proceeding against him.

32. It
is settled legal position that at such stage the Court has not to
evaluate available prima facie evidence on record so as to confirm or
decide particular thing but presence of prima facie evidence is
sufficient to frame charge. Therefore, though applicant has tried to
disclose and interpret certain evidence in pleading, except issue
which is necessary to decide present application, other evidence has
not been disclosed. However, I have gone through the entire pleadings
and record and did not find any substance in the Revision
Application.

33. However
it cannot be ignored that what is to be looked into is a very
strong suspicion founded upon materials before the Magistrate, which
leads him to form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged ; therefore
only because Apex Court has held so, it cannot be said that even if
in absence of suspicion, presumptive opinion of the commission of
offence as alleged is must and charge must be framed. Suffice to say
that when enactment / statute provides for discharging accused,
basically accused has a right to get discharge, which may be subject
to fulfillment of certain criteria, that may be laid down either in
the statute as well as its interpretation by the Apex Court and not
otherwise. Therefore there can be order of discharge if there is no
evidence with charge sheet which gives rise to even little suspicion
to presume the commission of offence by the accused. Needless to say
that even if there is suspicion regarding commission of offence, what
is required to refuse discharge is suspicion of commission of offence
by the accused against whom charge sheet is filed. Thus even if
suspicion is possible for commission of offence, and if there is no
evidence to link such suspicion with the accused, there cannot be a
presumption against the accused that he had committed the offence and
he may entitled to get discharged from the charges levied against him
under the charge sheet. Needless to say that the charges levied
against the person is to be considered and not the story or history
of incident which results in to the commission of offence. For more
clarity, commission of offence alone is not sufficient to frame
charge against any person, there must be some suspicion that offence
had been committed by the said person and not by any other person.,
If the suspicion is to the effect that though offence has been
committed, probably accused might have not committed such offence but
real offender may be some one else, Court has to see that truth comes
out whereby the Investigating Agency may not be permitted to put
their hands down mealy by filing charge sheet against any one suspect
or any innocent person. In such cases trial cannot be allowed to
continue only upon opinion of the investigating agency that accused
had committed the offence as alleged in charge sheet. The Court has
to arrive at independent opinion, after considering the available
prima facie evidence on record which is only in the form of
charge sheet, not only tabular charge sheet but list of witnesses and
their statement before the investigating agency (police papers). It
cannot be ignored that the ratio of conviction is quite low only
because of the reason that though police papers supports the charge
sheet, at the time of trail witnesses does not support their
statement; this happens because of the possibility that in most of
the crimes against the person/body under the Penal Code, the
statement of witnesses are common to the effect that accused had
acted in particular manner. However when crime is pertaining to some
documents or properties intellectual and real, the investigating
agency has to find out the real culprit with probable cogent
evidenced, rather than only oral evidence that accused had committed
crime as alleged. This is the area when its Courts duty to frame
independent suspicion regarding not only commission of crime but
involvement or roll of the accused against whom charge sheet is filed
and if there is no possibility of even little suspicion against the
accused regarding commission of offence by him, there is no bar to
discharge such person from the charges levied against him,. In such
cases it would be open for the original complainant and the
investigating agency to keep such person under suspicion but to
investigate further so as to find out real culprit, else filing of
charge against a person only on suspicion but without sufficient
evidence against him would be a futile exercise and it will not only
increase unnecessary workload but crime in the society also, since
real culprits are able to secluded them from the trial.

34. In
AIR 2013 SC633, Ajay Kumar Parmar v. State of Rajasthan, it is held
that the court should not pass an order of acquittal by resorting to
a course of not taking cognizance, where prima facie case is made out
by the Investigating Agency. More so, it is the duty of the court to
safeguard the right and interests of the victim, who does not
participate in discharge proceedings. At the stage of application of
Section 227, the court has to shift the evidence in order to find out
whether or not there is sufficient ground for proceeding against the
accused. Thus, appreciation of evidence at this stage is not
permissible..

Determination
and Conclusion:

35. I
have called for the papers of charge-sheet. I have scrutinized the
prima facie evidence on record which categorically proves the
involvement of the accused in commission of crime and that there is
prima facie evidence against him for framing the charges as levied in
the charge sheet.

36. However
it is made clear that any discussed in this judgment should not be
treated as expression of view or evaluation of evidence on merits or
decision on charges by the prosecution or defence by the applicant.
Thereby present conclusions of the Sessions Court as well as this
Court are confined only for disposal of the discharge application
filed under Section 227 of the Code. It is for the prosecution to
establish its charge and the Trial Judge is at liberty to analyze and
to arrive at an appropriate conclusion, one way or the other, in
accordance with law. Thereby Trial Judge is free to dispose of the
case uninfluenced by any of the observations made in this judgment.

37. In
view of the above facts and circumstances, I do not find any merit in
the application. There is a strong prima facie evidence about
commission of the offence and involvement of the applicant as alleged
in the charge sheet. Hence, the present application has no merits and
deserves to be dismissed